Patna High Court
Bihar through the Chief Secretary,versusAmitabh Kumar Gupta
- Decided
- Disposal
- DISMISSED
Holding
The Court held that the writ petitioner is entitled to be governed under the Old Pension Scheme as the vacancy, advertisement and selection were prior to 1 September 2005 and the delayed joining was with authority, thereby setting aside the impugned order.
Summary
The State of Bihar appealed against a single judge’s order that set aside a prior order allowing the writ petitioner, Amitabh Kumar Gupta, to be governed by the Old Pension Scheme. Gupta, appointed as District Audit Officer on 4 May 2005 and later as Deputy Collector, argued that despite joining the post on 16 September 2005—after the 1 September 2005 cut‑off for the New Pension Scheme—he should be covered by the Old Scheme because the vacancy, advertisement and selection were completed before the cut‑off and his delayed joining was due to a permitted extension. The respondents relied on the Finance Department’s 28 November 2023 resolution, which permits inclusion in the Old Scheme only if the employee joined before 1 September 2005, rejecting Gupta’s claim. The Court examined the resolution, prior case law, and the facts, concluding that Gupta satisfied all conditions for the Old Scheme and that the single judge’s order was not perverse. Consequently, the appeal was dismissed and the petitioner was directed to be placed under the Old Pension Scheme.
Issues considered
- The applicability of the Old Pension Scheme to an employee who joined after 1 September 2005 but whose vacancy and selection were completed before that date
- Whether the extension granted for joining defeats the right to opt for the Old Pension Scheme
- Whether the single judge’s order setting aside the earlier order was perverse or legally untenable
Subjects
- Old Pension Scheme
- New Pension Scheme
- Bihar Pension Rules 1950
- Option to opt for pension scheme
- Administrative law
- Letters Patent Appeal
- Discrimination
- Arbitrariness
Judgment
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.289 of 2025
In
Civil Writ Jurisdiction Case No.12495 of 2024
======================================================
1. The State of Bihar through the Chief Secretary, Govt. of Bihar, Patna.
2. The Principal Secretary, General Administration Department, Government
of Bihar.
3. The Principal Secretary, Finance Department, Government of Bihar, Patna.
4. The Principal Secretary, Co-operative Department, Government of Bihar,
Patna.
... ... Appellants
Versus
1. Amitabh Kumar Gupta, S/o Late Sachidanand Prasad, Resident of Near
Police Adda, Marwari Mohalla, P.S. - Gopalganj Town, District -
Gopalganj, Bihar - 841428.
2. The Director, General Provident Fund, Bihar, Patna.
3. The Accountant General, Bihar, Patna.
... ... Respondents
======================================================
Appearance :
For the Appellants : Mr. Sita Ram Yadav, G.P.-16
Mr. Jitendra Kumar (A.C. to G.P.-16)
For Respondent No.1 : Mr. Kumar Kaushik, Advocate
Mr. Sambhav Gupta, Advocate
Mrs. Namrata Dubey, Advocate
Mr. Kaushik Sagar, Advocate
For the Accountant General, Bihar: Mr. C. Swaroop, Advocate
======================================================
CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE HARISH KUMAR
ORAL JUDGMENT
Patna High Court L.P.A No.289 of 2025 dt.23-04-2026
2/19
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 23-04-2026
This Letters Patent Appeal has been filed by the State
of Bihar challenging the order dated 30.08.2024 passed by the
learned Single Judge in C.W.J.C. No. 12495 of 2024 setting
aside the impugned order dated 18th March, 2024, passed by the
Principal Secretary, General Administration Department,
Government of Bihar as well as giving liberty to the writ
petitioner to exercise his option as to whether he wanted to be
governed under Old Pension Scheme or New Pension Scheme,
within a period of 15 days from the date of passing of the order.
2. The writ petitioner approached this Court by filing
the aforesaid writ petition seeking for the following relief(s):
“i. For issuance of an order, direction or a
writ of certiorari for quashing and setting
aside the order contained in Memo No.
4685 dated 18.03.2024 issued under the
signature of respondent no. 2 whereby and
where under the respondent authorities
have rejected the representation filed by
the petitioner to grant the benefit of Old
Pension Scheme under the Bihar Pension
Rules, 1950 in place of New Contributory
Pension Funds Scheme as the writ
petitioner was initially appointed District
Audit Officer on 04.05.2005 prior to his
selection and appointment to the post of
Deputy Collector on 14.08.2009 and
therefore ought to have been covered under
Patna High Court L.P.A No.289 of 2025 dt.23-04-2026
3/19
the Old Pension Scheme.
ii. For issuance of an order, direction or a writ
of mandamus for directing the respondent
authorities to grant the benefit of Old
Pension Scheme under the Bihar Pension
Rules, 1950 to the writ petitioner in place
of New Contributory Pension Funds
Scheme as the writ petitioner was initially
appointed District Audit Officer on
04.05.2005 prior to his selection and
appointment to the post of Deputy
Collector on 14.08.2009.
iii. For issuance of an order, direction or a
writ of mandamus for directing the
respondent authorities to ensure opening of
G.P.F. Account and deduction of G.P.F.
Account from the date of appointment of
the writ petitioner after deducting the
contributions made under the New Pension
Scheme.”
3. The writ petitioner had initially participated in the
selection process conducted by Uttar Pradesh Public Service
Commission in the year 2001 and was selected and appointed as
District Minority Welfare Officer vide order dated 16.08.2004
and submitted his joining on 09.09.2004. Thereafter, he
participated in the 44th Combined Competitive Examination
conducted by the Bihar Public Service Commission for which
advertisement was issued on 09.07.2000 and he was declared
successful and appointed to the post of District Audit Officer
vide Memo No. 831 dated 04.05.2005. Twenty candidates were
selected to such post and the writ petitioner’s rank was 11. The
Patna High Court L.P.A No.289 of 2025 dt.23-04-2026
4/19
writ petitioner, on receiving the appointment order dated
04.05.2005, requested the Government of Bihar vide letter dated
16.05.2005 for two months’ time to join as he was already in
Government service and it would take some time for him to be
relieved. The relieving order was issued by the Department of
Minority Welfare, Government of Uttar Pradesh on 16.06.2005
since the writ petitioner was interested to join the services under
the Government of Bihar. The writ petitioner was directed to
hand over the charges of the District Minority Welfare Officer,
Basti, which he handed over and then sought for one month’s
time vide letter dated 18.07.2005 due to personal and family
reasons.
The writ petitioner, in the meantime, was also selected
for appearing in the 1st Combined Civil Services Mains
Examination, 2003, conducted by the Jharkhand Public Service
Commission which was supposed to be conducted from
23.06.2005 to 02.07.2005. The writ petitioner thereafter sought
for another extension from the Co-operative Department,
Government of Bihar for joining until September, 2005 vide
letter dated 13.08.2005 on the ground that he had to participate
in the 46th Combined Competitive (Main) Examination starting
from 03.09.2005. His request for extension of time was accepted
Patna High Court L.P.A No.289 of 2025 dt.23-04-2026
5/19
and he was allowed time until 30.09.2005 to submit his joining
report and ultimately the writ petitioner submitted his joining
report in the office of the District Audit Officer, Co-operative
Societies, Muzaffarpur on 16.09.2005.
In the meanwhile, the Government of Bihar issued a
resolution on 31.08.2005 which prescribed that the Government
had taken a decision to adopt the New Pension Scheme in
respect of the Government Servants appointed on/after
01.09.2005 and the said resolution was made applicable to the
Government Servants who have been appointed on/after
01.09.2005.
The writ petitioner requested the Director, General
Provident Fund for his inclusion under the Old Pension Scheme
vide letter dated 05.05.2006. However, he was included under
the New Pension Scheme while his application for Old Pension
Scheme was pending for consideration before the respondents.
It is the case of the writ petitioner that all the persons
who were junior to him in the seniority list were allowed the
benefits of Old Pension Scheme and in the meantime, the writ
petitioner participated in the 47th Combined Competitive
Examination conducted by the Bihar Public Service
Commission and was declared successful and appointed to the
Patna High Court L.P.A No.289 of 2025 dt.23-04-2026
6/19
post of Deputy Collector vide notification dated 14.08.2009 and
he was posted at Siwan for training. The writ petitioner was
relieved from his services as District Audit Officer vide
notification contained in Memo No. 3558 dated 01.09.2009 to
enable him to join the post of Deputy Collector and the writ
petitioner joined the said post of Deputy Collector on
02.09.2009.
The writ petitioner, upon joining, requested for
counting his prior service in the Government of Bihar on the
post of District Audit Officer, Co-operative Societies in the Co-
operative Department and for amalgamation of the two services,
which were under the same Government, which was allowed
and the services of writ petitioner rendered on the post of
District Audit Officer and Deputy Collector were amalgamated
and the period of prior service on the post of District Audit
Officer under the New Pension Scheme was directed to be
counted for the purpose of death-cum-retirement gratuity and
leave encashment and all other post-retirement benefits.
Aggrieved with the inaction of the respondents, the
writ petitioner filed a representation on 28.11.2022 requesting
the General Administration Department to allow him the benefit
of Old Pension Scheme, which was forwarded from the office of
Patna High Court L.P.A No.289 of 2025 dt.23-04-2026
7/19
District Magistrate, Kishanganj to the Principal Secretary,
General Administration Department on 07.12.2022. In his
representation, he took a specific plea that New Pension Scheme
would be applicable to those employees who were appointed
on/after 01.09.2005, and since he was appointed on 04.05.2005
and was relieved from the post of District Minority Welfare
Officer under the Uttar Pradesh Government on 17.06.2005 and
his request for extension of the period for joining for
participating in the competitive examination conducted by the
Bihar Public Service Commission was duly accepted and time
was allowed till 30.09.2005 for submission of the joining report
and, consequently he joined on 16.09.2005, therefore, he is
covered under the Old Pension Scheme.
It is the further case of the writ petitioner that the 13
candidates were appointed along with the writ petitioner, out of
which 12 candidates, who were the batchmates of the writ
petitioner, were covered under the Old Pension Scheme and
therefore, the decision taken by the authorities to cover the case
of the writ petitioner under the New Pension Scheme, is wholly
arbitrary and discriminatory.
4. The writ petitioner earlier approached this Court by
filing C.W.J.C. No. 12012 of 2023 for a direction to the
Patna High Court L.P.A No.289 of 2025 dt.23-04-2026
8/19
respondent authorities to consider his case under the Old
Pension Scheme instead of New Pension Scheme.
The said writ petition was disposed of vide order
dated 15.01.2024 giving liberty to the writ petitioner to
approach the Principal Secretary, General Administration
Department by filing appropriate representation within a period
of two weeks and the said representation was directed to be
disposed of by a reasoned and speaking order within a period of
six weeks. In terms of the said order, the writ petitioner
submitted another representation on 20.01.2024 taking
exhaustive plea in support of his claim of Old Pension Scheme,
but the Respondent No. 2 rejected the representation of the writ
petitioner vide Memo No. 4685 dated 18.03.2024.
5. Challenging the rejection order, it is submitted
before the learned Single Judge that the order was passed on the
basis of the opinion of the Co-operative Department, wherein, it
is stated that the delay in appointment of the writ petitioner was
neither due to administrative reason nor due to litigation and the
writ petitioner was himself responsible for the same and
therefore, his claim is fit to be rejected. According to the writ
petitioner, the date of joining is a fortuitous circumstance and
those appointed by the same order are entitled to the same
Patna High Court L.P.A No.289 of 2025 dt.23-04-2026
9/19
benefit of the pension scheme if they have submitted the joining
within the time allowed to them and since the writ petitioner
was allowed time till 30.09.2005 to join, therefore, the
respondents were not justified in denying the benefit of the Old
Pension Scheme to him.
It is the further case of the writ petitioner that once the
notification dated 28.11.2023 allows the option of the Old
Pension Scheme even to those employees who were appointed
after 01.09.2005, if the vacancies and advertisement were of
prior date, the writ petitioner deserves the benefit of the Old
Pension Scheme since he was appointed prior to 01.09.2005 and
thus, his case stands on a better footing.
6. After issuance of notice, Respondent No. 2 filed a
counter affidavit, wherein, the stand is taken as follows:
“12) That accordingly the petitioner assumed
the charge of District Audit Officer,
Muzaffarpur on 16.09.2005. That it is
further submitted that after selection of the
petitioner in the cadre of Bihar
Administrative Service, the Co-operative
Department, Government of Bihar, Patna
vide its Notification No. 3557 dated
01.09.2009 relieved the petitioner for
assume the charge on probationary Deputy
Collector, Siwan.
13) That accordingly, the petitioner submitted
his joining report to the post of
probationary Deputy Collector in Siwan on
02.09.2009.
Patna High Court L.P.A No.289 of 2025 dt.23-04-2026
10/19
14) That it is further humbly submitted that
from the available records, it also appears
that prior to selection of the petitioner as
District Audit Officer in the State of Bihar,
the petitioner had been appointed as
Minority Welfare Officer under the U.P.
State and had been posted as District
Minority Welfare Officer, Basti.
15) That as such when the petitioner was
selected as District Audit Officer in Co-
operative Department under the State
Government of Bihar, the petitioner
requested the Co-operative Department,
Bihar, Patna to extend two months more
time, so that he may relinquish the charge
of District Minority Welfare Officer of
Basti (U.P.) to join the post of District
Audit Officer in the State of Bihar.
However, on 16.06.2005 the
petitioner was relieved from the post of
District Minority Welfare Officer, Basti.
But after relieving the petitioner did not
join the post of District Audit Officer in the
Co-operative Department under the State
Government of Bihar. Rather the petitioner
once again requested to grant one month
time to submit his joining to the post of
District Audit Officer in the Co-operative
Department under the State Government of
Bihar.
But once again he did not join the
said post and once again requested on
13.08.2005 to grant time up to September,
2005 to join the post of District Audit
Ofiicer under the Co-operative
Department, Government of Bihar, Patna.
16) That in the light of aforesaid representations
of the petitioner the Cooperative
Department finally granted time up to
Patna High Court L.P.A No.289 of 2025 dt.23-04-2026
11/19
30.09.2005 to join the petitioner to the post
of District Audit Officer.
17) That moreover, the Co-operative
Department, Government of Bihar, Patna
in the light of Resolution Memo No.
12o6(pe) dated 28.11.2023 issued by the
Finance Department, Government of Bihar,
Patna has clarified the para (i) to (iii) of
para 4 of Resolution Memo No. 1206 (pe)
dated 28.11.2023 in following manner:-
i) Vacancies and Advertisement both
might be prior to 01.09.2005.
ii) The process of selection had been made
prior to 01.09.2005 and on the basis
of merit list out of total 20 candidates
only 13 candidates submitted their
joining report, including the
petitioner, Sri Gupta.
18) That out of 13 candidates excluding the
petitioner, Sri Gupta, 12 candidates had
submitted their joining report prior to
01.09.2005 and they were provided benefits
of old pension scheme. But the petitioner
submitted his joining report on 16.09.2005
and hence the petitioner was allotted N.P.S.
i.e. New Pension Scheme.
19) That from the aforesaid facts, it is clear
enough that the petitioner submitted his
joining report on 16.09.2005 i.e. much
after than 01.09.2005 on the date, the New
Pension Scheme came into force.
20) That after the date 01.09.2005 due to
administrative causes and judicial cases
the process of appointment of the petitioner
was not delayed. However, on the request
of the petitioner himself the extra time was
provided to the petitioner by the Co-
operative Department to join him belatedly
to the post of District Audit Officer.
Patna High Court L.P.A No.289 of 2025 dt.23-04-2026
12/19
21) That from the aforesaid facts, it is crystal
clear that the appointment of the petitioner
had already been done in the Co-operative
Department in the State of Bihar prior to
01.09.2005. That in the appointment of the
petitioner there is no any delay/laches
either the Administration side or due to any
process.
Rather than the petitioner himself
requested extra time to join the post and in
the light of the request of the petitioner the
Co-operative Department granted
extension of time to the petitioner for his
joining to the appointed post of District
Audit Officer.
22) That accordingly, as per convenience of the
petitioner joined the said post in the Co-
operative Department after of 01.09.2005.
That when the petitioner submitted his
joining the new pension rules was already
been in force and hence the Co-operative
Department included the name of the
petitioner in New Pension Scheme i.e.
N.P.S.
23) That however, on the representation of the
petitioner to include him in old pension
scheme, the matter was considered in the
light of Resolution Memo No. 12o6(pe)
dated 28.11.2023 issued by the Finance
Department, Government of Bihar. But the
aforesaid Resolution does not allow the
Respondent to include the name of the
petitioner in old pension scheme.”
7. The learned Single Judge considered the
submissions advanced by the learned counsel for the respective
parties as well as the notification dated 28th November, 2023
Patna High Court L.P.A No.289 of 2025 dt.23-04-2026
13/19
issued by the Finance Department, Government of Bihar
clarifying the position where an employee can opt for Old
Pension Scheme, which reads as follows:
“4. In light of the aforementioned factual
position and the provisions of the
Government of India, and after due
deliberation, the State Government has
decided that in cases where, through a
single advertisement, certain candidates
were appointed under the Old Pension
Scheme prior to September 1, 2005, while
other candidates were appointed under the
NPS subsequent to 01.09.2005; those
personnel appointed under the NPS shall
be granted the option to opt into the Old
Pension Scheme, subject to the following
conditions:—
(i) The vacancy and the advertisement must
date back to a period prior to 01.09.2005;
(ii) The selection process must have been
completed prior to 01.09.2005, and certain
candidates from the merit list must have
actually joined their posts prior to
01.09.2005, and must have been covered
under the Old Pension Scheme;
(iii) The delay in the appointment process of
personnel appointed subsequent to
01.09.2005, must have occurred due to
administrative reasons or pending judicial
litigation;
(iv) The concerned personnel shall submit their
application regarding the option to their
Appointing Authority within six months
from the date of issuance of the order;
subsequently, the Appointing Authority
shall review the matter in accordance with
the aforementioned conditions, obtain the
Patna High Court L.P.A No.289 of 2025 dt.23-04-2026
14/19
concurrence of the Finance Department,
and issue an appropriate order within six
months from the date of submission of the
application;
(v) The option may be exercised only once, and
such exercise shall be final.
(vi) As a result of inclusion of the employee
from NPS in the old pension scheme, the
amount accumulated in the NPS fund of
the concerned employee will be adjusted in
the light of Finance Department letter no.
330 dated 05.04.2016 and 485 dated
09.08.2021.”
8. While disposing of the writ petition, the learned
Single Judge has been pleased to observe as follows:
“7. In view of such circumstances and
specially due to the reason that some
other selected candidates joined in the
same service prior to 1st September, 2005
and they were allowed to give option, as
to whether they would be governed under
Old Pension Scheme or not, the petitioner
ought to have been governed under
paragraph-4 (ii) of the Notification dated
28th November, 2023.
8. In view of such circumstances and
considering the fact that similar issue was
decided previously in the following Writ
petitions, according permission to express
option to the petitioners under similar
facts and circumstances in C.W.J.C. No.
10901 of 2006 (Md. Kayumuddin Ansari
& Others Vrs. State of Bihar & Ors.),
decided on 3rd August, 2011, Ashok
Kumar Sharma & Ors. Vrs. The State of
Bihar & Ors., reported in 2021 (1) BLJ
415 and in also C.W.J.C. No. 14039 of
Patna High Court L.P.A No.289 of 2025 dt.23-04-2026
15/19
2014 (Rakesh Kumar & Ors. Vrs. The
State of Bihar & Ors.), decided on 8th
May, 2018.
9. This Court is of the view that the impugned
order dated 18th March, 2024, passed by
the Principal Secretary, General
Administration Department, Government
of Bihar is bad in law and set aside and
quashed.”
9. Learned counsel for the State while challenging the
impugned order dated 30.08.2024, basically raised the ground
that the resolution bearing Memo No. 1206(PE) dated
28.11.2023, issued by the Finance Department, Government of
Bihar, Patna, which is a policy decision of the Government of
Bihar, has not been considered in its proper perspective and the
writ petitioner deliberately or for his own causes joined the post
of District Audit Officer in the Co-operative Department of the
State of Bihar on 16.09.2005, much belatedly than 01.09.2005
i.e. after the New Pension Scheme came into force and as such,
he is responsible for the same and cannot claim the Old Pension
Scheme.
It is further argued that extension of the joining time
is not the bona fide right of a particular individual appointed,
and even though the writ petitioner has been granted extension
for joining the post as he had prayed before the authorities
concerned, but he could not have been provided the benefit of
Patna High Court L.P.A No.289 of 2025 dt.23-04-2026
16/19
the Old Pension Scheme as he had joined the post of District
Audit Officer in the State of Bihar on 16.09.2005, admittedly
after the New Pension Scheme came into force on 01.09.2005.
10. The writ petitioner, on the other hand, supported
the impugned order and contended that when the authorities
concerned allowed the extension up to 30.09.2005 and the writ
petitioner joined on 16.09.2005, even if such date of joining is
after the cut off date i.e. 01.09.2005 and by the time of his
joining, the New Pension Scheme had come into force,
however, since the process of recruitment had already
completed much prior to 01.09.2005 and the writ petitioner’s
appointment letter was issued on 04.05.2005 and juniors to the
writ petitioner were allowed to avail the Old Pension Scheme,
therefore, the authorities concerned were not justified in
rejecting the representation of the writ petitioner and the learned
Single Judge is quite justified in passing the impugned order. It
is argued that there is no perversity in the impugned order and
therefore, it should not be interfered with.
11. Adverting to the contentions raised by the learned
counsel for the respective parties, we find that there is no
dispute that in the light of the resolution of the Government of
India dated 17.02.2020, the Finance Department, Government
Patna High Court L.P.A No.289 of 2025 dt.23-04-2026
17/19
of Bihar issued the resolution contained in Memo No. 1206
dated 28.11.2023. It is also not in dispute that in the aforesaid
resolution prescribed by the State Government, the decision has
been taken that if various persons have been appointed before or
after 01.09.2005 by way of same advertisement, those covered
under the New Pension Scheme shall be allowed the option of
Old Pension Scheme on the following conditions:
(i) The vacancy and the advertisement must be
before 01.09.2005;
(ii) The selection process must have been
completed before 01.09.2005 and some of
the candidates must have submitted their
joining before 01.09.2005 and must have
been covered under the Old Pension
Scheme;
(iii) The delay in appointment of the employees
after 01.09.2005 was not attributable to the
administrative reason or litigation.
12. We are of the view that the case of the writ
petitioner completely falls within the conditions which are
stipulated in the resolution dated 28.11.2023. Not only the
vacancy and advertisement for the post of District Audit Officer
Patna High Court L.P.A No.289 of 2025 dt.23-04-2026
18/19
was issued before 01.09.2005, but the selection process was also
completed prior to 01.09.2005 and candidates submitted their
joining report before 01.09.2005 and all of them were allowed
to be covered under Old Pension Scheme. The delay in joining
of the petitioner was with the due permission of the authorities
and he was granted extension for joining as he was to participate
in the Combined Competitive (Main) Examination. Therefore,
we find no perversity or palpable unreasonableness in the
impugned order of the learned Single Judge or it cannot be said
that it is inconsistent with any provision of law. Since the
Letters Patent Appeal is an intra-court appeal, where this Bench
is supposed to sit as a Court of correction correcting its own
order in exercise of the same jurisdiction and the scope of
interference is within a narrow compass and as already stated
that since we did not find any perversity in the same and the
approach of the learned Single Judge who has passed the
impugned order is quite justified, we are not inclined to interfere
with the same.
Accordingly, we do not find any merits in the present
Letters Patent Appeal, which stands dismissed.
13. The learned counsel for the writ petitioner at this
juncture submitted that as per the impugned order, the writ
petitioner has already submitted his representation before the
Patna High Court L.P.A No.289 of 2025 dt.23-04-2026
19/19
authority concerned giving his option to be governed under the
Old Pension Scheme and he has not received any
communication from the concerned authority.
14. Since we are of the humble view that the case of
writ petitioner is governed under the Old Pension Scheme and
rightly so it has been held by the learned Single Judge and the
impugned order dated 18th March, 2024, passed by the Principal
Secretary, General Administration Department, Government of
Bihar has been set aside, the authorities concerned shall do the
needful within a period of two months from today and
communicate the order to the writ petitioner in the light of the
order of this Court indicating therein that his case would be
governed under the Old Pension Scheme.
15. Interlocutory Application(s), if any, shall also
stand disposed of.
(Sangam Kumar Sahoo, CJ)
(Harish Kumar, J)
P.K.P./-
AFR/NAFR A.F.R.
CAV DATE
Uploading Date 27.04.2026
Transmission Date
Checking your session…